FINDINGS AND RECOMMENDATIONS
Chavez, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus [doc #31] pursuant to 28 U.S.C. § 2254. He challenges his conviction for felony assault on a child resulting in death for which he was sentenced to 25 years to life in state prison.
II. FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal summarized the facts of the offense in an unpublished opinion on direct appeal of Chavez's conviction:
In November 2006, J.O. had a 13-month-old son, M.O. J.O. no longer had a relationship with M.O.'s father, but she was in a relationship with [Chavez].FN2 J.O. and [Chavez] lived together about half of the time, and [Chavez] assumed a fatherly role with M.O. J.O. taught [Chavez] the proper way to play with and care for M.O. She also told [Chavez] not to shake M.O. when playing because it could cause brain injury.
FN2. At the time of trial in November 2007, J.O. was still in a relationship with defendant and the two had a child together. On November 27, 2006, M.O. was sick and fussy, teething, running a fever, and had vomited. J.O., M.O., and [Chavez] spent the day together at J. O.'s house. J.O. drove her friend, L.M., to Shasta College that evening. After returning from dropping off L.M., J.O. took a shower while [Chavez] watched M.O. J.O. heard M.O. scream while she was in the shower. She got out of the shower to check on M.O. and found [Chavez] holding M.O. trying to calm him down. J.O. finished her shower and then put M.O. down to sleep. She stated that when she put M.O. down to sleep, she gave him a bottle, and he appeared to be drinking it. However, J.O. also said that M.O. looked "weird" and did not "look right."
J.O. then left to pick up L.M. from school about 30 to 45 minutes after M.O. went down.
About 15 minutes later, [Chavez] appeared at [the neighbor] J.W.'s apartment holding M.O. M.O. was limp and there was vomit and blood on both M.O. and [Chavez]. [Chavez] asked J.W. to perform CPR on M.O. and she called 911.FN3 Defendant then phoned L.M. to let her know M.O. was being taken to the hospital. L.M. told J.O.
FN3. According to J.W., [Chavez] did not call 911 himself because "he was fearful because he had been smoking pot earlier."
M.O. was admitted to the emergency room at St. Elizabeth Community Hospital in Red Bluff. He was unresponsive to stimuli at the time of admission and was put on mechanical ventilation.
M.O. had a retinal hemorrhage in his right eye and elevated liver enzymes and his CAT scan revealed bleeding in the back of his head. M.O.'s condition was assessed as critical and he was airlifted to the UC Davis Medical Center.
Upon arrival at the UC Davis Medical Center, M.O. had no spontaneous neurologic activity. A "brain death examination" revealed that no part of M.O.'s brain had activity. M.O. was unable to breathe without the aid of a ventilator. Further CAT scans revealed there was blood in the back of his head and his brain was extremely swollen. A possible cause of the retinal hemorrhage and swelling of the brain was shaken baby syndrome.
J.O. requested that M.O. be taken off life support. After being taken off life support, M.O. died quickly on November 28, 2006. The cause of death was determined to be blunt force trauma to the head.
A subsequent autopsy revealed multiple internal injuries to M.O. The injuries consisted of abdominal injuries and head injuries. The abdominal injuries consisted of a tear on the underside of the liver, a large area of bleeding and bruising in the mesentery,FN4 and bruising of the duodenum.FN5 The head injuries consisted of a subdural hematoma, a subarachnoid hemorrhage,FN6 and bleeding at the deepest layer of the scalp. Blunt force trauma was the cause of the head injuries and was the likely cause of the abdominal injuries.
FN4. The mesentery is a fatty membrane that carries blood vessels from the aorta to the intestines.
FN5. The duodenum is the area where the stomach ends and the small intestine begins.
FN6. Both a subdural hematoma and a subarachnoid hemorrhage involve bleeding at different levels of the brain. After M.O. was airlifted to the UC Davis Medical Center, the Red Bluff police asked J.O. and [Chavez] to come to the police station to answer some questions. When [Chavez] was questioned regarding whether he shook M.O. (the likely cause of the injuries), he admitted that he "shook him up a little" and "shook him up a couple times." [Chavez] also admitted that he "threw" M.O. up in the air and M.O. landed on the sofa. When it became apparent to the police detectives that [Chavez] had possibly assaulted the child, he was read his MirandaFN7 rights. After being read his rights, [Chavez] continued to speak with the police detectives and admitted to "squeezing" M.O. as well. A DVD of [Chavez]'s questioning by the police was played for the jury at trial.
FN7. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. [Chavez] was subsequently charged by information with felony murder and felony assault on a child resulting in death. The felony murder charge was later dropped and the case proceeded to trial on the felony assault charge.
The prosecution introduced expert medical testimony regarding the cause and likely circumstances of M.O.'s death. The prosecution's expert, Dr. Gregory Reiber, testified that the injuries M.O. sustained were consistent with being squeezed, shaken, and then having his head slammed down on a hard surface. Dr. Reiber conceded on redirect examination that a fall from five to six feet could have caused the head injuries that resulted in M.O.'s death. However, Dr. Reiber stated that in combination with the abdominal injuries it was "not consistent" that M.O. was only dropped. Additionally, he stated that the abdominal injuries were not consistent with improperly performed CPR because typically the injuries would occur to the opposite side of the liver.
Dr. Reiber also testified regarding the likely behavior of M.O. after sustaining such a blow to the head. Dr. Reiber testified that he would expect a child to be knocked unconscious for a short period of time. After regaining consciousness, a child would be "sleepy, not very responsive, not very interactive, until lapsing into unconsciousness again from the swelling of [the] brain." Dr. Reiber testified that a child might vomit as a reflex from the swelling in the head 10 to 20 minutes after the initial blow. Dr. Reiber also stated that he would not expect a child to take a bottle after such a head blow and thought it was "unlikely" that a baby would cry because the baby would not fully regain consciousness. [Chavez] testified on his own behalf. He denied he ever shook M.O. and explained that his previous statements to law enforcement were made because he was "scared" and he thought if he admitted to shaking M.O. the police officers would "let [him] go faster."FN8 [Chavez] went on to testify that while J.O. was in the shower, M.O. slipped out of his arms and fell to the floor from his shoulder.FN9 According to [Chavez], M.O. "kept crying" after he fell. [Chavez] testified that he never told J.O. about M.O.'s fall. [Chavez] explained that after J.O. went to pick up L.M. from school, M.O. began to choke and he performed CPR on the child. [Chavez] also stated that while he performed CPR on M.O., the child vomited in his mouth. This caused [Chavez] to run to the kitchen to wash his mouth out. [Chavez] left M.O. on the edge of the bed and when he returned from washing his mouth out, M.O. had apparently fallen off the bed onto the floor.
FN8. J.O. had testified, however, that [Chavez] admitted to her he shook M.O.
FN9. No evidence of [Chavez]'s height appears in the record. Defense counsel argued that M.O.'s injuries were the result of being dropped, falling off the bed, and incorrectly performed CPR. Counsel argued that these events in combination caused the fatal head injuries and the abdominal injuries.
Defense counsel requested a jury instruction on simple assault as a lesser included offense. The trial court determined that a simple assault instruction was not supported by the facts of the case; however, the court expressed concern about whether an instruction on assault by means of force likely to produce great bodily injury should be given. Defense counsel asked that the court not instruct the jury on that crime and the court found that it was not supported by the evidence, so the jury was only instructed on felony assault on a child resulting in death.
People v. Chavez, No. L 4696618, 2008 WL 4696618, at 1-3 (Cal. App. 3rd Dist. 2008).
The jury found Chavez guilty of the charged offense. He was sentenced to an indeterminate prison term of 25 years to life. The California Court of Appeal, Third District, affirmed the conviction and the California Supreme Court denied a petition for review. Chavez sought habeas corpus relief in state court which was likewise denied.
Chavez asserts six grounds for relief:
A. The trial court's omission of lesser included offense instructions violated his right to due process;
B. Trial counsel rendered ineffective assistance by failing "to file a Miranda motion to exclude" Chavez's statements to police and the DVD recording thereof as taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966);
C. Trial counsel rendered ineffective assistance by failing to secure a Neuropathologist to testify as a defense expert;
D. Trial counsel rendered ineffective assistance by failing to object to prejudicial misconduct by ...